Della Malva and Medicare Participation Review Committee
[2006] AATA 884
•18 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 884
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/311
GENERAL ADMINISTRATIVE DIVISION ) Re MARIA DELLA MALVA Applicant
And
MEDICARE PARTICIPATION REVIEW COMMITTEE
Respondent
DECISION
Tribunal Senior Member R W Dunne Date18 October 2006
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and determines that the applicant should be reprimanded.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
HEALTH AND COMMUNITY SERVICES – medical practitioner – offences in connection with claims for Medicare benefits – disqualification from participation in Medicare – whether disqualification appropriate – Guidelines published by Minister – decision set aside.
Crimes Act 1914 (Cth) ss 19B
Health Insurance Act 1973 (Cth) ss 124D, 124E, 124F, 124G, 124H, 124R, 128A
Minister for Human Services and Health v Haddad (1995) 38 ALD 204
Re Bham and Medicare Participation Review Committee and Anor (2002) 35 AAR 507
Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Edwards and Minister for Human Services and Health and Medicare Participation Review Committee (1996) 42 ALD 613
Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR1REASONS FOR DECISION
18 October 2006 Senior Member R W Dunne 1. In a decision made on 12 October 2005, the Medicare Participation Review Committee (“MPRC” and “Committee”), established under s 124E of the Health Insurance Act 1973 (“HI Act”), determined that the applicant (Dr Maria Della Malva) should be fully disqualified from participation in the Medicare scheme for a period of 2 months, pursuant to s 124F(2) of the HI Act. By application made pursuant to s 124R of the HI Act Dr Della Malva has applied to this Tribunal for review of the determination of the MPRC.
2. At the hearing, Mr Michael Abbott QC appeared as counsel for the applicant and Mr Lex Holcombe appeared as counsel for the respondent. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”) were admitted in evidence (as exhibit A1). In addition, the Tribunal admitted the following documents in evidence:
·witness statement of the applicant dated 16 May 2006, together with annexure (exhibit A2);
·witness statement of Dr Robert Culver dated 17 May 2006 (exhibit A3);
·witness statement of Dr Silvana Beltrame dated 18 May 2006 (exhibit A4);
·supplementary witness statement of the applicant dated 18 May 2006 (exhibit A5);
·Medicare Benefits Schedule Book operating from 1 November 2005 (exhibit R1); and
·extract from Medicare Benefits Schedule dated 1 May 2003 (exhibit R2).
3. Given the nature of certain of the T documents and of the evidence likely to be presented before it, the Tribunal made an appropriate order under s 35(2)(c) of the Administrative Appeals Tribunal Act 1975.
issue for the tribunal
4. The issue for the Tribunal is whether the applicant should be fully disqualified from participation in the Medicare scheme for a period of 2 months or whether some other determination should be made, pursuant to s 124F(2) of the HI Act.
legislation
5. The following legislation is relevant to this case:
Crimes Act 1914 (Cth)
“19B Discharge of offenders without proceeding to conviction
(1) Where:
(a)a person is charged before a court with a federal offence or federal offences; and
(b)the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i)the character, antecedents, cultural background, age, health or mental condition of the person;
(ii) the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
(c)dismiss the charge or charges in respect of which the court is so satisfied; or
(d)discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:
(i)that he will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
(ii)that he will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A) on or before a date specified in the order; or
(B)in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order; and
(iii)that he will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.
…”
Health Insurance Act 1973 (Cth)
“124D Chairperson etc. to be notified if practitioner convicted of relevant offence
(1) This section applies in relation to a conviction of a practitioner where:
(a) the practitioner has been convicted of a relevant offence;
(b)all the rights of the practitioner to appeal against the conviction (other than the right to apply for an extension of the time for instituting such an appeal) have been exhausted or have expired; and
(c) the conviction has not been wholly set aside.
(2)Within 28 days after this section commences to apply in relation to a conviction of a practitioner, the Minister shall, if an appeal, or an application for an extension of the time for instituting an appeal, against the conviction is not pending, give to the Chairperson a notice in writing setting out the details of the conviction and, at or about the same time, give to the practitioner a copy of the notice.
…
(4)In subsection (3), disqualification has the same meaning as it had in section 19B before the commencement of this Part.
…
124E Chairperson to establish Medicare Participation Review Committee
(1) Except where subsection (2) or (5) applies, where:
(a)a Chairperson receives a notice under section 124D in relation to the conviction of a practitioner; and
(b)an appeal, or an application for an extension of the time for instituting an appeal, against the conviction, is not pending;
the Chairperson must establish a Medicare Participation Review Committee.
…
124F Determinations in relation to relevant offences
(1)Subject to subsections 124J(8) and 124T(3), a Committee established under subsection 124E(1) in relation to a practitioner shall make a determination in relation to the practitioner in respect of the commission by the practitioner of any relevant offence that is the subject of a notice under section 124D and has not been the subject of a previous determination by a Committee.
(2)A Committee established under subsection 124E(1) in relation to a practitioner shall, in making a determination in relation to the practitioner, determine that:
(a)no action should be taken against the practitioner;
(b)it should counsel the practitioner;
(c)it should reprimand the practitioner;
(d)the practitioner is disqualified in respect of one or more of the following:
(i)the provision of specified professional services, or the provision of professional services other than specified professional services;
(ii)the provision of professional services to a specified class of persons, or the provision of professional services to persons other than persons included in a specified class of persons;
(iii)the provision of professional services within a specified location, or the provision of professional services otherwise than within a specified location; or
(e)the practitioner is fully disqualified.
(3)In making a determination under subsection (2) in relation to a practitioner, a Committee shall:
(a)without limiting the generality of the matters to which it may have regard in making the determination, have regard to the nature of, and the circumstances concerning the commission of:
(i)each relevant offence of which the practitioner has been convicted; and
(ii)each offence of which the practitioner has been convicted before the commencement of this Part, being an offence that would have been a relevant offence if the conviction had occurred after that commencement; and
(b)comply with guidelines in force under section 124H.
(4)A determination under subsection (2) shall be made in writing.
(5)Where a Committee determines under paragraph (2)(d) or (e) that a practitioner is disqualified, the Committee shall specify in the determination the period over which the disqualification is to have effect, being a period that ends:
(a)where the determination is a review of a period of disqualification referred to in subsection 124D(3)—on or before the day on which that period of disqualification is to come to an end; or
(b)in any other case—within 5 years after the day on which the determination comes into effect.
124G Hearings
(1)Subject to subsection (2) and to subsection 124J(8), a Committee shall not make a determination in relation to a person unless it has conducted a hearing.
(2)In accordance with guidelines (if any) in force under section 124H relating to this subsection, a Committee established in relation to a person may, if it is satisfied, upon the evidence or other material available to it, that no action should be taken against the person, determine that subsection (1) of this section does not apply in relation to the making of a determination in relation to the person.
(3)A person in relation to whom a Committee is established may make a written submission to the Committee requesting that the Committee make a determination under subsection (2).
124H Guidelines relating to making a determination
(1)The Minister may, by instrument in writing, make guidelines to be applied by Committees with respect to the making of relevant determinations.
(2)Without limiting the generality of the matters to which guidelines made under subsection (1) may relate, guidelines may specify circumstances in which relevant determinations may be made.
(3)Sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply to guidelines made under subsection (1) as if in those provisions references to regulations were references to guidelines, references to a regulation were references to a provision of a guideline and references to repeal were references to revocation.
(4)Guidelines shall not be taken to be statutory rules within the meaning of the Statutory Rules Publication Act 1903, but subsections 5(3) to (3C) (inclusive) of that Act apply in relation to guidelines as they apply to statutory rules.
(5)For the purposes of the application of subsection 5(3B) of the Statutory Rules Publication Act 1903 in accordance with subsection (4) of this section, the reference in that first-mentioned subsection to the Minister of State for Sport, Recreation and Tourism shall be read as a reference to the Minister administering this Act.
(7)In this section, relevant determination means a determination under subsection 124F(2), 124FA(1) or (2), 124FAA(2), 124FB(1), 124FC(1), 124FE(1) or (2), 124FF(1), (2) or (5) or 124G(2).
…
124R Review by Administrative Appeals Tribunal
Where a Committee has made a determination in relation to a person, an application may be made to the Administrative Appeals Tribunal for review of the determination.
…
128A False statements relating to medicare benefits etc.
(1)A person shall not make, or authorise the making of, a statement (whether oral or in writing) that is:
(a) false or misleading in a material particular; and
(b)capable of being used in connection with a claim for a benefit or payment under this Act.
Penalty: $2,000.
(2) Where:
(a)a person makes a statement (whether oral or in writing) that is false or misleading in a material particular;
(b)the statement is capable of being used in connection with a claim for a benefit or payment under this Act;
(c)the material particular in respect of which the statement is false or misleading is substantially based upon a statement made, either orally or in writing, to the person or to an agent of the person by another person who is an employee or agent of the first-mentioned person; and
(d)the last-mentioned statement is false or misleading in a material particular;
that other person is guilty of an offence punishable on conviction by a fine not exceeding $2,000.
(2A) An offence under subsection (1) or (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
…
(4)A prosecution for an offence under this section may be commenced at any time within 3 years after the commission of the offence.
(5)It is a defence if a person charged with an offence under this section in relation to a statement made by the person did not know, and could not reasonably be expected to have known, that the statement was:
(a) false or misleading in a material particular; or
(b)capable of being used in connection with a claim for a benefit or payment under this Act.
(6)In this section, a reference to making a statement includes a reference to issuing or presenting a document, and a reference to a statement shall be construed accordingly.”
background
6. The applicant is a consultant physician based at the Memorial Medical Centre in North Adelaide. Her practice has two distinct components. The first is an out-patient practice where she consults patients in her rooms. The second component is hospital patients, usually with acute and sometimes terminal illnesses. These patients will have been admitted to one of the various hospitals which the applicant attends.
7. In April 2002, the applicant was reviewed by representatives from the Health Insurance Commission (“HIC”) who raised with her concerns they had about her billing history. Following on from the review, the applicant rendered no accounts for services provided by her to her hospital patients for a period of approximately 6 months between April 2002 and October 2002. However, after discussions with colleagues, in late October 2002, she decided to render bills to in-patients she had consulted during this 6 month period.
8. Subsequently, the applicant’s billing history and record-keeping were investigated further by the HIC. She was interviewed by HIC representatives on 26 March 2004, accompanied by her solicitor. It appeared that, between 23 April 2002 and 24 December 2002, the applicant claimed benefits in relation to 1,693 services and the HIC raised queries about 498 services involving payment to the applicant of $23,699.35. The applicant was ultimately charged with 81 counts of making a statement in writing that was false in a material particular and capable of being used in connection with a claim for benefits contrary to s 128A(1) of the HI Act. The 81 counts were for a total of 81 services for 31 patients covering the period 31 May 2002 to 16 October 2002 and involved an incorrect payment of $3,702.90 to the applicant. Although the counts against her were only for 81 services, the applicant withdrew her claims for benefits in relation to billings for all 498 services. She repaid the sum of $3,702.90 referable to the 81 billings and, even though there was no alleged wrong- doing for the remaining 417 services, the applicant repaid the sum of $19,966.45 in claims that were referable to those services.
9. In the Adelaide Magistrates Court on 1 April 2005, the applicant pleaded guilty to the 81 counts. The learned Magistrate (Mr Snopek SM) accepted that the applicant had made an honest mistake in making the claims for the 81 services. He found that the dates covering the services did not reflect the period during which the applicant made the claims. He was satisfied that the charges against the applicant had been proved but that, pursuant to s 19B(1) of the Crimes Act 1914, she should be discharged without conviction upon condition that she enter a recognisance in the sum of $5,000 to be of good behaviour for 2 years.
10. On 30 May 2005 and 2 June 2005, a notice pursuant to s 124D of the HI Act was given to the Chairperson of the MPRC in relation to the applicant and to the offences committed under s 128A(1). On 26 July 2005, the Chairperson advised the applicant that a Committee had been appointed to consider her conduct at a hearing to take place in Melbourne on 8 September 2005. The evidence before the Committee comprised:
·the oral submissions made at the hearing;
·all documents tendered and accepted into evidence in the Adelaide Magistrates Court (exhibit A1, T15);
·the remarks on penalty of the Magistrate, Mr P Snopek SM (exhibit A1, T8);
·a statement made by the applicant on 26 March 2004 (exhibit A1, T4 at pages 21-26);
·written submissions made for the Commonwealth Director of Public Prosecutions (“DPP”) for the purposes of the Magistrates Court hearing (exhibit A1, T14);
·a schedule showing relevant periods and the counts in relation to which the applicant was charged (exhibit A1, T14);
·further material by way of character evidence, and a partial transcript of the proceedings before the Magistrate, as well as additional submissions to the DPP (exhibit A1, T14).
Following the hearing, the MPRC published its determination on 12 October 2005. It determined that it was appropriate, in the applicant’s circumstances, to impose a period of disqualification and, pursuant to s 124F of the HI Act it fully disqualified the applicant from participation in the Medicare scheme for a period of 2 months.
the evidence
11. The applicant was not called to give evidence. Instead, Mr Abbott confined his case to the making of submissions, based largely on the applicant’s witness statements and the T documents.
12. The evidence from the T documents, which was not challenged by Mr Holcombe, was that the applicant was a busy practitioner who worked long hours, usually 12 to 14 hours a day, 6 or 7 days a week. Her affidavit evidence was that currently, she was treating, on a daily basis, 20 to 25 seriously ill in-patients in various hospitals in Adelaide. Sometimes the number could go higher than this, particularly in the winter months when many of her older and more infirm patients were vulnerable to bronchial and other winter-related conditions. She was required to see all of her seriously ill in-patients on a daily basis, that is, 7 days a week. Generally, these 20 to 25 in-patients would be patients who she saw on an ongoing basis and who required repeated hospitalisation because of the seriousness of their illnesses. Probably as many as 85 percent were repeat patients.
13. In addition, the applicant saw a further 60, less seriously ill, patients on a weekly basis. The vast majority of these were patients who had previously been under her care as in-patients. Some of them would be pre-operative, relying on the applicant to prepare them for potentially complex and life-threatening operations. Many of them would be post-operative patients. The applicant currently had well over 3,000 regular patients on her books, of whom 20 to 30 percent were so ill and infirm as to require repeated and regular consultations from time to time, particularly over the winter months. She estimated that over a 2 to 3 month period, she could have as many as 600 patients in her care.
14. Because she spoke Italian fluently, about 60 percent of her patients were of Italian background and, in many cases – probably almost half of these – were non-English speaking. From the applicant’s evidence, it appeared there was only one other Italian speaking general physician practising in Adelaide and he was now winding down his practice. As a result, the applicant found it difficult to find other general physicians to cover her rounds on weekends, let alone over longer periods of time. The applicant was concerned that a 2 month absence could put many of her patients at risk or certainly put at risk their standard of care.
15. The applicant’s further evidence (exhibit A1, T4 at page 22) was that, when she met the HIC representatives in April 2002, she was in the early stages of pregnancy. She was concerned that the stress of the HIC investigation, combined with her existing heavy work commitments, would cause problems with her pregnancy. Aside from her concern, she had been admitted to hospital in late January 2002 with back complications, including a slipped disc in her neck. She had suffered a long period of discomfort and anxiety about her back condition, which added to the feelings of unease and stress that had come about as a result of the HIC review. Ultimately, the applicant experienced significant difficulties and complications with her pregnancy. These problems were identified in a report of Dr Mandy Nichols (exhibit A1, T14 at pages 103-105). She constantly faced the possibility of miscarriage. Following the birth and the applicant’s discharge from hospital, Dr Nichols prescribed the use of Domperidone and Capadex. Both Domperidone and Capadex often cause sedation.
16. Having made the decision to bill for her in-patient care, the applicant spent several days with her secretary working through her records to identify the patients involved. She did this at home because of her recent birth. She was looking after her child at home and was recovering from the birth herself. Subsequently, patient names were cross-checked against hospital records, generally working from admission and discharge dates. For patients the applicant did not see every day, the patient notes were accessed and only billed where visits were recorded in the notes. One of the tasks of the applicant’s secretary was to cross-check claims against a number of the applicant’s absences. In the period being reviewed, the applicant attended a number of interstate conferences, at which time another physician would have seen her patients. The applicant acknowledged that incorrect claims for Medicare benefits had been made during the review period when she was absent, whether because she was on leave attending conferences or because she had entered hospital to have her baby. However, her evidence was that it appeared the claims were incorrectly made in only approximately one week during the 6 month period.
17. In the hearing in the Magistrates Court on 1 April and 22 April 2005, Mr Snopek SM found that the offences in the case of the incorrect claims for benefits were not committed by the applicant with any degree of dishonest intent or knowingly. In his reasons, he remarked (exhibit A1, T8 at pages 65, 66 and 68):
“… Then in a period of approximately one week, with your secretary, you put in bills trying to reconstruct back for the previous six months. … Unfortunately, you prepared those bills towards the end of October 2002 while coping with the problems that had been caused by the birth of your son and subsequent difficulties after his birth in relation to a number of areas which are included in Dr Nichol’s report and while you were taking medication which had the ability to impair your memory. What you did is reconstruct using patient records and not hospital records. You did not check your own diary but anticipated your secretary would check that. If there had been a check made of your diary by your secretary and put back against the bills for the patients relevant for that period of time, … the rest of them, that is the fact that other claims were incorrect, would have come to light.
… I have not the slightest doubt that they were not made through greed but an attempt to reconstruct the accounts from imprecise records and without there having been a check done of your diary. What happened as a result, is you have returned $20,000 plus the amount incorrectly claimed. Whether I come to record a conviction or not at the end of these proceedings certainly you fined yourself the amount that would have been imposed as a financial penalty in this matter or slightly more than the penalty I would have set if convictions are recorded and a fine was imposed. I do not regard your return of the $20,000 in round figures as an attempt to buy your way out of the fact that there had been a query in relation to these claims. I consider it really does reflect your mental state and your response to a challenge, something that you did at the urging of Dr Culver, to claim for work that you had done. Having accepted Dr Culver’s advice the affect upon you but [sic] must have been devastating that the very reason why you had not put in these claims after being spoken to by Dr Menz had led to a challenge by the HIC. In an odd way, you no doubt gave the money back not simply because of the stress but because you did not want anything to do with any claim that you thought was a challenge to your integrity as a medical practitioner. I accept that especially embarrassed you and that this is out of character.
…
… I have concluded on the facts of this case and the material that has been outlined that it is expedient to release you on probation without recording a conviction. I do so because I am satisfied that pursuant to 19B(1) of the Crimes Act that the charges have been proved but am of the opinion that it would be expedient to release you having regard to your character, antecedents. I do not regard your cultural background of any great significance except as a medical practitioner and the loss to your elderly Italian patients and your ability to converse with them but more your age, health and in particular your mental condition at the time and also the manner in which this was committed, I consider was also under extenuating circumstances. Having made that decision, that is to release you for those reasons, having considered those factors relevant as outlined which I place great importance on under section 16A and which lead me to consider to release you, I order that you be discharged without conviction upon condition that you enter a recognizance to be of good behaviour for a period of two years in the sum of $5,000. …”
18. In the MPRC hearing on 8 September 2005, Mr Abbott appeared for the applicant. At the outset, the Committee Chairman (Mr D Curtain QC) made the following comments (exhibit A1, T 16 at page 143):
“I should say at the outset that both Dr Dawborn and Dr Mathew, as well as myself, have dealt with these types of proceedings before and we are aware that our interest is confined to the matters that were before the Magistrate and the subject of Orders made by him. We are not interested in circumstantial matters that didn’t proceed to a prosecution.”
And later the Chairman said (exhibit A1, T16 at pages 169-170):
“We accept that there is no dishonest intent. My concern is that [sic] the calibre of the records when she was effectively on notice, if I can put it that way, from Dr Menz. In her statement she says a number of times: I strenuously denied I claimed for attendances that did not occur, and she describes it as administrative error. Isn’t that just putting a flavour on it? She did claim for attendances … and the people that she employed, and to whom she delegated the task of keeping records that she did not keep herself, kept inadequate records to the extent that she did claim for attendances that did not occur; isn’t that right?
…
The fact is that Dr Della Malva is in charge of her practice and she has a responsibility of ensuring when she makes a claim it’s done correctly. And rather than admit that it is her problem she denies making any suggestions that the attendance does not occur and says that the only things that happened were administrative errors. I must say that I’m not impressed with that as an argument.”
19. With due respect to the MPRC, its determination (exhibit A1, T3 at pages 10-17) makes interesting reading. Under the heading “Background”, the Committee remarked:
“13.The Committee accepts that this was not an attempt to defraud Medicare but an offence of incompetent record keeping, and no more. The Committee was not impressed with the submissions contained in Dr Della Malva’s statement that she denied any suggestion that she claimed for attendances that did not occur ‘apart from claims arising as a result of administrative error’.
14.The fact is that Dr Della Malva’s record keeping was of such a quality that she was unable to identify when she saw patients with any accuracy in relation to the claims the subject of the charges. Further, such was the state of Dr Della Malva’s record keeping that when she and her employee attempted to reconstruct the times of visits, they did not realise that claims were made when Dr Della Malva was actually interstate, on each occasion for some days. In the Committee’s opinion, this strongly indicates that Dr Della Malva had been derelict in regard to her record keeping. This is of even greater concern when one takes into account that the faulty record keeping took place after she had been spoken to in April 2002 by two officers of the HIC.”
20. Under the heading “Committee’s Consideration”, the Committee said:
“18.The Committee is obliged to follow guidelines under Section 124H(1) of the Act. Notwithstanding the fact that no conviction was recorded against Dr Della Malva, the guidelines require us to treat the findings that the offences were proved, based on her pleas of guilty, as convictions for relevant offences.
19.Pursuant to guideline 6, the Committee is required to have regard to the following matters:
‘6. …
1.The nature, and circumstances concerning the commission, of such relevant offence or offences, including –
(i) the number of such relevant offences;
(ii) the date of commission of each such relevant offence;
(iii) the seriousness of each such relevant offence;
(iv)the penalty, if any, imposed by the court upon the practitioner in respect of each such relevant offence;
(v)the reasons for decision and any other statements made by the court in relation to its consideration for each such relevant offence.’
…
25.The guidelines suggest that where a practitioner has been dealt with by a court for offences such as these, disqualification from participation in the Medicare scheme for a period of not more than 6 months would be appropriate (see guideline 8(1)(ii)).”
21. Then, under the heading “Reasons for Determination”, the Committee said:
“26.The Committee is of the view that Dr Della Malva’s lack of organisation in her practice, together with pressure she was under at the time, brought about these unfortunate circumstances. As has been noted, she was spoken to by officers of HIC in relation to her billing practices but, it is clear, she did not take steps to adequately record attendances on patients thereafter. Notwithstanding that the offences actually took place over a short period of time, the reconstruction which led to claims being made improperly on 81 occasions is a matter that the Committee views very seriously.
27.The Medicare scheme cannot function effectively unless medical practitioners treat with absolute care the way in which they access the funds of the scheme. They bear a high responsibility to make claims only when such claims are justified and accurate. Such was not the case here.
28.We do not accept that the fact that Dr Della Malva was being prescribed Domperidone and Capadex is a matter in mitigation. Rather, we would expect Dr Della Malva to be aware of this, and note that she was continuing to treat her patients at the time she was being prescribed these medications.
29.The responsibility of avoiding overwork and overstrain rests primarily with the doctor. Badly performed work, and this includes unkept records, is not acceptable.
30.The Committee believes that it is appropriate in these circumstances to impose a period of disqualification.”
22. Finally, under the heading “Terms of the Determination” the Committee recorded the following determination:
“31.Pursuant to Section 124F of the Act, that Dr Della Malva is fully disqualified from participation in the Medicare scheme for a period of two months. This determination is to take effect 28 days after service of this notice upon her.”
consideration
23. In the circumstances of the applicant, she pleaded and was found guilty of committing offences under s 128A(1) of the HI Act. Notwithstanding being discharged without a conviction, her case was referred to the MPRC pursuant to s 124D(2). The Committee was required to make a determination in relation to the applicant in respect of the commission of the offences. In doing so it had to determine, under s 124F(2), that one of five courses of action should be taken. These ranged from taking no action against the applicant, counselling, reprimand, partial disqualification and full disqualification. In making its determination, the Committee was required to comply with guidelines in force under s 124H (see s 124F(3)). In Minister for Human Services and Health v Haddad (1995) 38 ALD 204, the Full Court of the Federal Court explained the role of the guidelines. At pages 211-213, the Court said:
“Under s 124H the minister has power to make guidelines to be applied by committees with respect to the making of determinations.
The guidelines in the present case have been made by the minister ‘to be applied’ by committees in the making of determinations. The schedule in which the guidelines are set out describes them as ‘Guidelines to be Applied’.
Under s 124H(3), the provisions of the Acts Interpretation Act 1901 (Cth) ss 48-50, relating to the making, disallowance and repeal of regulations, are made to apply to the guidelines as if references to regulations were references to provisions of guidelines and as if references to repeal were references to revocations.
While the guidelines are not to be taken to be statutory rules within the meaning of the Statutory Rules Publication Act 1903 (Cth), nevertheless certain provisions of that Act apply in relation to the guidelines as they apply to statutory rules.
Accordingly, the guidelines in the present case, are to be regarded as having the same binding force as the statutory rule. Although they are referred to as ‘guidelines’ they can more properly be described as rules which in fact circumscribe the discretion which the Authority has, to use the language of Hill J in Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 at 301; 36 ALD 1 at 13.
The guidelines are not mere internal policy directives drawn up within the department to assist staff in the implementation of general policy, nor are they in the nature of administrative rulings.
The real issue in the present case is not whether the guidelines are binding or have legislative force, but rather what their effect is, on their true construction and what they require the committee to do when making a determination under s 124F.
Clause 2 requires the committee to have ‘regard to the matters and comply with the directions’ set out in the guidelines.
Clause 3 states that nothing in the guidelines will be taken to limit the powers conferred by the Act on a committee. Further, nothing in the guidelines is to be read to limit the capacity of the committee to take into account matters that the committee considers relevant to the making of the determination, being matters not dealt with in the guidelines.
Clause 5 makes it clear that when considering a relevant offence under the guidelines, which has been dealt with by a court, the committee shall not be entitled to review the decision of the court in relation to that offence.
Under cl 6, in making a determination in relation to a conviction of a relevant offence, the committee must have regard, among other things, to the nature and circumstances concerning the commission of the relevant offence including the seriousness of each relevant offence and any statements made by the Court in relation to its consideration of a relevant offence.
In the present case the magistrate included in his remarks on sentence, a statement that the defendant ‘well knew what the situation was and obviously knew what he was doing’.
Under cl 7, in making a determination, a committee must have regard to certain matters such as the length of time the practitioner has been in active professional practice; the effect that a determination might have on the practitioner and on the practitioner's patients and the community in which he practises, together with ‘any other matters which the committee considers relevant’.”
24. The Court in Haddad also referred to clause 8 of the Guidelines. That clause operates where a Committee is of the opinion that some action (by inference, other than counselling or reprimand) should be taken in respect of the practitioner. Clause 8(1)(ii) of the Guidelines provides a presumption that, where the practitioner has been first convicted of a relevant offence, having regard to what s 124B(2) of the HI Act says about an order under s 19B of the Crimes Act 1914, then “disqualification for a period of not more than 6 months would be appropriate”. The Court in Haddad observed (at page 212):
“The presumption as to the limitation on the period of disqualification is framed as a presumption which the committee shall have regard to. It is not stated that the committee is bound to apply that time limit on disqualification. Thus, the period of 6 months is a ‘presumption’ which is rebuttable. Accordingly, on its ordinary meaning, it is a prima facie period which may be varied if the committee thinks it appropriate after having regard to other relevant matters. What it means is that the committee begins with the presumption that the maximum 6 month period applies, but other evidence, circumstances and matters may outweigh it to justify the imposition of a longer period. The weight of particular considerations is a matter for the committee.”
25. By way of further explanation, the Tribunal (Senior Member J Dwyer and Member Dr P Staer) in ReBham and Medicare Participation Review Committee and Anor (2002) 35 AAR 507 said (at paragraph 43):
“For the first occasion on which a practitioner is convicted … the presumption set out in the Guideline is that ‘disqualification for a period of not more than 6 months would be appropriate’. Thus 6 months is suggested as the maximum period of disqualification, unless there is some reason to go beyond the presumptions in the Guidelines.”
26. In the event that the MPRC makes no determination under paragraph (a) of s 124F(2) that no action be taken against the practitioner, the subsection requires it to make a determination in terms of paragraphs (b), (c), (d) or (e). It is evident that this must involve a consideration of s 124F(2)(b) and (c), the counselling and reprimand provisions, before rejecting them and deciding on disqualification, whether a partial disqualification (pursuant to s 124F(2)(d)) or a full disqualification (pursuant to s 124F(2)(e)). Clearly, clause 8(1) of the Guidelines can only work if the Committee determines that no action be taken against the practitioner, that counselling or reprimanding the practitioner is not justified and that only a disqualification is appropriate. Logically, paragraphs (a), (b), (c), (d) and (e) should be considered by a Committee in the order in which they appear in s 124F(2). To give justice and fairness to the process, disqualification should be the penalty of last resort. The Guidelines do not suggest that disqualification for a period of not more than 6 months would be appropriate in every case or as the starting point for a consideration of the conduct of the practitioner. Clause 8(1)(ii) of the Guidelines must be seen as the maximum penalty if, and only if, the Committee determines to take action against the practitioner and also determines that counselling or reprimand would not be appropriate.
27. In the case of the applicant, an analysis of the Committee’s determination would suggest that it did not (or did not properly) take into account the alternative courses open to it under paragraphs (a), (b), (c) and (d) of s 124F(2). Mr Holcombe submitted that the Committee did have regard to all the evidence detailed in paragraph 10 of these reasons. When asked by the Tribunal whether the alternatives available under paragraphs (a) and (b) of s 124F(2) had been considered by the Committee in the course of its deliberations, Mr Holcombe said:
“I don’t think Mr Abbott put those to the Committee expressly. He said there was a sliding scale, that is probably quite sufficient for the Committee who knows the legislation and knows the span of determinations it’s required to consider and impose one. A statutory decision-maker is not required to note in its statement of reasons that it has had regard to its own law, but in this case it should be sufficient to assume that – but in this case to note that the Committee was, or received that express contention from counsel.” (transcript 22.5.06, pages 54 – 55).
28. The fact that it may have been clear to Mr Holcombe, that the Committee had considered all of the alternative courses open to it in s 124F(2), was not readily apparent upon a reading of the Committee’s determination. After acknowledging that it was obliged to follow the Guidelines under s 124H(1), the Committee referred to clause 6. It addressed in turn each of the matters capable of applying to the applicant that were referred to in the clause. It then referred to clause 8 of the Guidelines and to the maximum 6 months’ period of disqualification in clause 8(1)(ii), where the practitioner had been dealt with by a Court for the relevant offences. In doing so, the Committee appears to have ignored clause 7 of the Guidelines and the other relevant considerations in that clause to be taken into account by the Committee in making its determination. In response to Mr Abbott’s suggestion that clause 7 of the Guidelines had been ignored, Mr Holcombe said:
“My friend referred to Guideline 7, and implicitly, I think, indicated that the Committee didn’t have regard to Guideline 7 because, if it did, it would have imposed either a determination of no action, or counselling. The fact that the outcome is not in the applicant’s favour – the outcome of the MPRC was not in the applicant’s favour does not mean that the MPRC didn’t have regard to the submissions and the evidence.
These submissions of Mr Abbott have subsequently been supported by affidavit material, but the MPRC didn’t take issue with them. We don’t take issue with the affidavit material. We don’t take issue that she is a fluent Italian speaker and she works very hard. We don’t take issue with any of that.
The point in this context is, the Committee didn’t take issue with it, they accepted the submissions. They accepted that she works very hard. They accepted that she satisfies a unique niche, and they decreased the presumptive period of 6 months disqualification to 2 months. There has got to be some basis for the MPRC decreasing the presumption in the Ministerial Guidelines.” (transcript 22.5.06, pages 55 – 56)
29. Notwithstanding Mr Holcombe’s contentions, nowhere in their reasons for determination does there appear to be any mention of, or reference to, the Committee having considered and then rejected the alternative courses available to it under paragraphs (a), (b), (c) or (d) of s 124F(2). Nor is there any reference to the Committee considering the matters in clause 7 of the Guidelines that it “shall have regard to” in making its determination.
30. Although Mr Holcombe was at pains to explain why the MPRC had made its determination in respect of the applicant in the manner it did and for the reasons it gave, it remains that the Tribunal is able to consider the matter de novo. The review power of the Tribunal has been well set out and explained by Franki J in Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 when he said (at pages 640-641):
“The Administrative Appeals Tribunal in exercising its power of reviewing the decision of the Minister stands in the place of the Minister. The question for the determination of that Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal. There are no statutory provisions controlling or guiding the exercise of the power of the Administrative Appeals Tribunal in determining a review other than those which are found in the Administrative Appeals Tribunal Act 1975. However, the proper approach by the Tribunal was considered in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, where Bowen CJ and Deane J said (at 589): ‘The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.”
31. Like the MPRC, the Tribunal is required to have regard to the matters and to comply with the directions set out in Part II of the Guidelines. The relevant matters and directions are contained in clauses 6, 7 and 8. There is no hierarchy in the Guidelines. This was acknowledged for both the applicant and the respondent. Clauses 6, 7 and 8 are of equal importance and need to be addressed in any situation where a determination is being made under or pursuant to s 124F(2).
32. The Tribunal now turns to a consideration of the relevant matters and directions contained in clauses 6, 7 and 8 of the Guidelines.
33. The relevant matters in clause 6 of the Guidelines are:
(i) The number of relevant offences
As was noted by the Committee, the applicant has never before been convicted or brought before a Court on a matter involving a relevant offence, nor has she been dealt with by the Medical Board of South Australia in relation to such an offence or any other proceedings.
(ii) The date of commission of each relevant offence
The offending took place over approximately one week, being the period during which the relevant records of the applicant were reconstructed.
(iii)The seriousness of each relevant offence
The offences were obviously serious and should be viewed as such. However, there is no fraud involved by the applicant and, in the Magistrates Court, the Magistrate accepted that the applicant had made an honest mistake in making the claims for the 81 services.
(iv)The penalty, if any, imposed by the court upon the practitioner in respect of each relevant offence
The applicant was released without conviction upon her entry into a bond of $5,000 to be on good behaviour for a period of two years.
(v)The reasons for decision and any other statements made by the court in relation to its consideration for each relevant offence
The offending claims by the applicant were not made through greed, but an attempt to reconstruct her accounts from imprecise records and without checking her diary. If a check had been made of the applicant’s diary and compared with the proposed bills for the services during the relevant period, incorrect claims would have been identified. The return by the applicant of the total sum of $23,699.35 in respect of the 498 services during the relevant period was not an attempt by her to buy her way out of the fact that the relevant offences had been committed. Having regard to the applicant’s character and antecedent conduct, it was expedient to release her on probation without recording a conviction. The applicant’s cultural background was not of any great significance, otherwise than in her capacity as a medical practitioner and in the loss to her elderly Italian patients and her ability to converse with them. It was more a matter of the applicant’s age, her health and in particular her mental condition at the time and the circumstances in which the offences were committed.
34. The relevant matters in clause 7 of the Guidelines are:
(1)The length of time the practitioner has been in active professional practice as a practitioner
No evidence was given or submissions put to the Tribunal in relation to this matter.
(2)The effect that any particular determination that the Committee may make would have in relation to the practitioner
Again, no specific evidence was given or submissions put to the Tribunal in relation to this matter. Mr Holcombe did make the point that the applicant would be precluded from 2 months’ worth of Medicare benefits, but would not be precluded from non-Medicare billables or gap payments. However, he acknowledged that there would be a financial consequence to her practice.
(3)The effect that any particular determination that the Committee may make would have in relation to the practitioner’s patients and/or the community in which the practitioner practises, in respect of the provision and quality of medical services
The applicant possesses unique skills in her practice. As she is now, effectively, the only general physician in Adelaide in full-time practice who is fluent in Italian, the disqualification imposed by the MPRC will have a dramatic effect on her elderly and infirm Italian patients, many of whom have no or limited command of the English language. As explained by Dr Beltrame in her witness statement (exhibit A4), the applicant is the only Italian speaking physician to whom she refers her patients. If the applicant were to be suspended from the Medicare system for 2 months, it would be difficult for her to place her patients with another physician in this period. Most of Dr Beltrame’s patients who are very ill, particularly those requiring hospitalisation, would not receive the standard of care that they have come to expect, and have obtained, from the applicant, principally because of the language barrier. Dr Beltrame’s practice would suffer and, because of the disruption, would potentially compromise her patients’ care. The suspension of the applicant from the Medicare system for the period of disqualification proposed by the Committee would obviously have a significant impact upon her own seriously ill in-patients and the other patients in her care, particularly those of Italian background who are non-English speaking.
(4)Any other matters which the Committee [and the Tribunal] considers relevant
The applicant is uniquely skilled, both in the manner in which she conducts her practice and in her ability to communicate and maintain relations with the significant number of her patients of Italian background. She is obviously hard-working and conscientious and is of undoubted good character. She is also obviously highly respected by her colleagues.
35. As has been adverted to earlier in paragraphs 24 and 25 of these reasons, in relation to a first-conviction offence, clause 8(1)(ii) of the Guidelines sets out a presumption as to the length of disqualification to which the MPRC (and the Tribunal) shall have regard if they are of the opinion that “some action should be taken in respect of the practitioner”. Clause 8 is of no assistance in determining when that action should be in the form of counselling or a reprimand and when it should be some form of disqualification. However, as explained in Re Bham (supra), it does provide a presumptive period of maximum disqualification. Although the Tribunal in Re Bham suggested there might be some reason to go beyond the maximum presumption in the Guidelines, the Tribunal is of the view that the maximum should not be the starting point, but is able to be a period less than the maximum period of disqualification. As was put by Mr Abbott and referred to earlier in these reasons, disqualification should be the penalty of last resort, not the penalty of first resort.
36. In its consideration of the matter de novo, Mr Holcombe put various submissions to the Tribunal. He pointed out that the MPRC process was not an issue of professional misconduct. It was an assessment of the conduct of a practitioner in respect of the administration of services for which Medicare benefits were payable. In the applicant’s case, the MPRC was comprised of an experienced legal practitioner and two medical practitioners. The significance of the peer review process was that it brought to bear an aspect of professional experience. The MPRC did not conduct itself like a Court, where a relevant offence was committed under the HI Act. The MPRC looked behind the offence and considered other issues. It looked at the circumstances of the offence and at its causes. In doing so, the Committee followed the Guidelines in force under s 124H of the HI Act. Mr Holcombe referred to clause 8 of the Guidelines and to Haddad (supra). He contended that the presumption for the starting point for disqualification under clause 8(1)(ii) was 6 months. He said that, in the applicant’s case:
“… The Committee ended up with a two month period of disqualification. It started with six months, took into account all the material, and ended up with two months.
On the face of just the mere reduction in the period of disqualification, it looks like the Committee took into account the submissions that were put to it, and the evidence that was put to it. Otherwise, it wouldn’t be having proper regard to the presumption set out in the Ministerial guidelines of six months.” (transcript 22.5.06, page 40).
37. Mr Holcombe submitted that the determination of the MPRC was open to it under the HI Act and the Guidelines. It was consistent with other decisions of this Tribunal and the Federal Court involving similar circumstances, it was consistent with and was not an inflexible application of the Guidelines and it was made by a Committee representative of the profession and cognizant of medical practice. He contended that there were two main streams of logic that underpinned the Committee’s determination. The first was the seriousness of the applicant’s conduct and the significance of the peer review process. The second was the requirement for consistency in decision-making. The fact that the applicant did not keep accurate contemporaneous records led to the commission of the offences and it was the attempted reconstruction that caused the Committee concern.
38. Mr Abbott, on the other hand, argued that the MPRC had misconceived the situation. The applicant’s case was not a case of inadequate record-keeping. It was a case of no record-keeping. When the Committee came to deal with the applicant, it applied the model that was usually applied to a practitioner who had kept bad records for a period of time. That model was inappropriate in the case of the applicant who, for the relevant period, kept no records of her own for the purposes of Medicare charging. As a consequence, Mr Abbott submitted that much, if not all, of what the Committee said in its determination was peculiarly inappropriate to the applicant. The Tribunal is unable to accept the distinction made by Mr Abbott. In the Tribunal’s view, there is little or no difference between the case of no record-keeping and inadequate record-keeping, where the offence of making a false statement under s 128A(1) of the HI Act is involved.
39. As to consistency in decision-making, Mr Holcombe contended that the Committee’s determination disqualifying the applicant for 2 months was consistent with decisions under the HI Act that involved similar factors and circumstances. He referred to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 where Brennan J said (at page 639):
“ …
Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly acceptable notions of justice. …”
And to Nevistic (supra) where Deane J said (at pages 646-647):
“ …
There are many reasons for the desirability of consistency in the making of decisions affecting rights, opportunities and obligations under the law. Paramount among them is the fact that inconsistency in the treatment of those amenable to the law involves an element of injustice. Particularly where there is competition or correlativity between rights, advantages, obligations and disadvantages, equality of treatment under the law is an ingredient of modern concepts of justice and the rule of law. …”
40. It was Mr Holcombe’s submission that the period of disqualification in the applicant’s case was consistent with the decision in Re Bham (supra). In the circumstances of both Dr Bham and the applicant, poor record-keeping and a lack of care had brought about the incorrect Medicare claims. In his statement of facts, issues and contentions, Mr Holcombe said (at paragraph 37):
“Given that a 3 month disqualification was imposed on Dr Bham for the commission of only 18 offences under the Act, the MPRC’s 2 month disqualification for Dr Della Malva cannot be said to be an unfair or inconsistent decision.”
In Re Bham, the MPRC disqualified Dr Bham from participation in the Medicare scheme for 6 months, the maximum allowed under the Guidelines. The Tribunal reduced the disqualification period to 3 months. However, Dr Bham’s case was quite different from that of the applicant. As the Tribunal in that case noted at paragraph 46 of its reasons, the offences with which Dr Bham was charged:
“… are not isolated aberrations which might perhaps point to a lower than usual period of disqualification. Neither is there clear evidence of intentional fraud on Medicare. There are a number of offences and there is no reason to believe that they are the only false statements actually made. … The amounts of overclaimed [sic] were small, but they were only representative. …”
41. Dr Bham was convicted by the Court of some 18 counts and was punished by 18 convictions. The applicant was not convicted by a Court, the Magistrate seeing her offending in a much lesser light, degree and kind than the Court found in Dr Bham’s offending. Unlike what happened in Re Bham, the offending by the applicant was found by the Magistrate to be “… simply an aberration caused by those factors I have outlined” (exhibit A1, T8 at page 69). What the MPRC saw, in the applicant’s case, was the totality of what was being alleged, directly or indirectly, against her. However, hers was not a case of representative Medicare claims, it was a case of claims made and offences committed over approximately one week.
42. It is noted that, in Re Bham, the MPRC found (in paragraph 17 of its reasons):
“… Without genuine contrition of [sic] the part of the practitioner it is difficult to be satisfied that the practitioner will not offend again. Dr Bham's conduct convinces the Committee that he does not recognise the seriousness of his actions and is not to be trusted.”
The Tribunal in that case appeared to be satisfied that there was no evidence of contrition on the part of Dr Bham. In the applicant’s case, there was such evidence, including the reimbursement of Medicare for significantly more than she was obliged to repay, before any charges were laid against her. As the Magistrate found, this was not done by the applicant to buy her way out of any query that may be made in relation to the claims. She repaid the sums because she did not want anything to do with any Medicare claim that she thought was a challenge to her integrity as a medical practitioner.
43. There are other differences between the circumstances in Re Bham and those of the applicant. In Re Bham, the 18 separate counts upon which Dr Bham was convicted were each representative of some 50 separate claims for Medicare benefits which could have resulted in 900 separate counts. In the applicant’s case, there were no more than 81 counts. Moreover, unlike Dr Bham, there were extenuating factors that occurred at or around the time the applicant’s false claims were made. In Re Bham (at paragraph 22), the Tribunal accepted that, in assessing the “nature of the offence”, it was relevant to have regard to “… special circumstances such as, for instance, ill-health …”. Although Dr Bham made unsubstantiated assertions that work-related stress accounted for his errors, which assertions were rejected by the Tribunal, the applicant’s case was quite different. During the relevant period, she was suffering from serious health problems related to her back injury, culminating in physical and emotional after-effects following the birth of her child, and the impact of the drugs she was taking at the time to deal with her health problems.
44. In Re Bham, there was no evidence from anyone other than Dr Bham as to the nature and quality of the medical services he provided currently. In the applicant’s case, there was evidence from her colleagues (Dr Beltrame and Dr Culver) of the medical services she provided to her patients. Moreover, in Re Bham (at paragraph 38), the Tribunal there was influenced by the fact that there was no “… evidence that Dr Bham works in an area of special need either culturally or geographically”. Had there been such evidence (and there was none) the Tribunal, consistent with the decision in Re Edwards and Minister for Human Services and Health and Medicare Participation Review Committee (1996) 42 ALD 613, would have regarded this as “a weighty factor”. In contrast, in the case of the applicant, there was significant evidence of the impact that any period of suspension would have on her patients, the coverage of other general physicians’ practices and the practices of general practitioners (such as Dr Beltrame) who referred many of their chronically ill patients to the applicant. The Tribunal regards this very much as a weighty factor.
45. Mr Holcombe referred the Tribunal to the decisions of other Tribunals and to comparisons of MPRC determinations considered in those decisions. As each case involved its own particular facts and background, apart from Re Bham, the Tribunal was unable to gain little assistance from an analysis of those decisions.
46. Coupled with his submissions as to consistency in decision-making, Mr Holcombe submitted that it was necessary for the Tribunal to strike a balance between consistency and policy. He referred to the comments of Deane J in Nevistic (supra) where he said (at page 647):
“… It is important that those who constitute the Tribunal should, in their search for the correct or preferable decision in the particular case, be entitled to pay regard both to decisions of the Tribunal in other matters and to policies enunciated and developed by those entrusted with the primary administration of the relevant law.”
He put to the Tribunal that the decision in the applicant’s case was consistent with the Ministerial directions laid down in the Guidelines, and that where a practitioner had been dealt with by a Court for offences such as those committed by the applicant, disqualification from participation in the Medicare scheme for a period of not more than 6 months was appropriate. He said that, at its hearing, the Committee had considered and acknowledged all of the relevant mitigating factors that had been presented by Mr Abbott. However, he said “the MPRC took the view that important policy considerations relating to the proper functioning of the Medicare scheme outweighed these factors. A lesser penalty is not appropriate in Dr Della Malva’s circumstances due to the seriousness of her offences”.
47. The Tribunal notes that Mr Abbott made the following submissions to the MPRC (exhibit A1, T16 at pages 156 and 167):
“My starting point is that we would invite the Committee to take no action at all. I know that there is a sliding scale or descending scale of action that can be taken where suspension is the highest and reprimand is another option, but we would say based on some of the decisions which this Committee has made when you were the Chair, that this is a case when no action should be taken in view of what’s happened.
… My plea on her behalf is that you, in the circumstances of her matter, refrain from taking any action at all, not even a reprimand because of what she suffered and because of the unique circumstances of her offending.”
It was Mr Holcombe’s contention that the Committee had considered all of the submissions made by Mr Abbott, yet ultimately expressed their concern at the “deplorable” state of the applicant’s record-keeping. As appears in his statement of facts, issues and contentions, Mr Holcombe said:
“63.After due consideration of the mitigating factors presented by Mr Abott [sic] the MPRC determined not to counsel, reprimand or refrain from taking action against Dr DellaMalva. Rather, and in line with previous decisions, the relevant guidelines and policy, the MPRC determined to disqualify Dr DellaMalva from participation in the Medicare scheme for a period of 2 months.”
48. Notwithstanding that it had been submitted for the applicant that the MPRC had overlooked her background, character and the matters surrounding the commission of the offences in making its final determination, Mr Holcombe then submitted that the Tribunal should be hesitant to infer that a specialist body, such as the Committee which was entitled to make use of its expertise, had overlooked or failed to take into account material evidence, particularly where the matter was within that specialist expertise. Mr Holcombe referred the Tribunal to the decision of Stephen J in Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1, which was a case involving a determination by a Town Planning Appeals Tribunal. At page 11, Stephen J said:
“In approaching the decision of an expert tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the Tribunal’s decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the tribunal have special expertise and experience which the legislation plainly intends them to employ. I must, therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as it has.”
49. The Tribunal is conscious of the views expressed in Spurling and other cases in which that decision was applied. However, as was explained by Franki J in Nevistic (supra) at paragraph 30 of these reasons, the Tribunal stands in the place of the decision-maker and must decide whether the decision being reviewed was the correct or preferable one on the material before the Tribunal.
50. In his final submissions, Mr Holcombe referred to the various paragraphs in s 124F(2) of the HI Act and to the presence of the word “or” after paragraph (d). Because of the presence of this word, he said it was open to the Committee to make a determination based on any of the paragraphs and not in any sequential order. Moreover, it was not a process that the Committee was required to set out in its reasons. However, if he was wrong, Mr Holcombe submitted that the Committee did go through the threshold process, referred to in clause 6 of the Guidelines, it felt that some action should be taken and that put the matter squarely within clause 8 of the Guidelines (paragraph 25 of the Committee’s determination). Mr Abbott made the point, which the Tribunal accepts, that the omission of any reference to clause 7 of the Guidelines (and, in particular, clause 7(3)) was a very significant oversight by the Committee. It is true that there was no requirement for the Committee to say that it did have regard to the relevant Guidelines and to all the paragraphs in s 124F(2). Nevertheless, in its determination, the Committee made a specific reference to clause 6 of the Guidelines and to the consideration of the various matters and directions referred to in it. There was no similar reference to the consideration of the matters and directions in clause 7.
51. In answer to Mr Holcombe’s submission regarding the presence of the word “or” at the end of paragraph (d) in s 124F(2), the Tribunal also accepts the submission made by Mr Abbott. Clearly, paragraphs (a), (b), (c), (d) and (e) are alternatives. They are disjunctive and not conjunctive. In the Tribunal’s view, the manner in which the paragraphs are set out does not require the Committee necessarily to consider the paragraphs in any sequential order. However, on any reasonable reading of s 124F(2), it would be appropriate for the Committee to proceed in that way. Indeed, Mr Holcombe admits as much in paragraph 63 of his statement of facts, issues and contentions.
conclusion
52. The Tribunal has had careful regard to the provisions of s 124F(2) of the HI Act and, in particular, to s 124F(3). It is useful to repeat s 124F(3) here, and it reads:
“(3)In making a determination under subsection (2) in relation to a practitioner, a Committee shall:
(a)without limiting the generality of the matters to which it may have regard in making the determination, have regard to the nature of, and the circumstances concerning the commission of:
(i)each relevant offence of which the practitioner has been convicted; and
(ii)each offence of which the practitioner has been convicted before the commencement of this Part, being an offence that would have been a relevant offence if the conviction had occurred after that commencement; and
(b)comply with guidelines in force under section 124H.”
In the Tribunal’s view, the proper and logical approach for making a determination under s 124F(2) is to have regard to the provisions contained in s 124F(3) and to comply with the Guidelines in force under s 124H, in particular, relevantly clauses 6, 7 and 8 of the Guidelines. The Tribunal has done this and considers that disqualification, whether under paragraph (d) or under paragraph (e), which was what occurred in the applicant’s case, is not appropriate. In reaching this conclusion, the Tribunal has given due consideration to the peer review process referred to by Mr Holcombe and inherent in s 124F(2). However, in its view, there are factors in clauses 6 and 7 of the Guidelines, which the Tribunal has noted in paragraphs 33 and 34 of these reasons, that point to action, other than disqualification, being appropriate. The applicant has made it clear that the ramifications of her actions have been acutely brought home to her by:
·the appearances she had to make in the Magistrates Court and before the MPRC; and
·the publication of an article in the Adelaide press, drawing attention to her appearance in the Court and to the 81 counts of making a false statement in connection with claims for Medicare benefits.
Moreover, the applicant has introduced a system into her practice to ensure that proper record-keeping takes place in all circumstances. This will ensure that, what was “simply an aberration” caused by various extenuating factors that existed at the time, does not occur again.
decision
53. Taking all the above matters into account, the Tribunal has decided that a reprimand is appropriate. The decision under review is set aside and replaced with a decision in these terms.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .............J Coulthard.....................................
AssociateDate of Hearing 22 May 2006
Date of Decision 18 October 2006
Counsel for the Applicant Mr M Abbott QC
Solicitor for the Applicant Iles Selley Lawyers
Counsel for the Respondent Mr L Holcombe
Solicitor for the Respondent Phillips Fox
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